Will the Supreme Court promote innovation in TV?

James P. Tuthill

Published 5:07 pm, Wednesday, April 2, 2014

American Broadcasting Corp. vs. Aereo Inc., will be argued before the Supreme Court in less than three weeks, and the result will either boost Internet-age delivery of video content and hold down the ever increasing rise of cable prices or kill off the rebirth of free over-the-air TV.

Aereo is a new technology startup offering a variation on providing consumers with over-the-air television. It receives the television broadcasters' signals, which are delivered via antennas, and then streams the broadcast content to its users over the Internet.

The broadcasters fear this rebirth of free TV could be their Waterloo. So a group of them, including the four national broadcasters (Fox Television, Comcast/NBC, Walt Disney/ABC and CBS) have asked the Supreme Court to block Aereo's service on the basis that it amounts to copyright infringement.

The narrow legal issue is whether or not Aereo's service constitutes offering "public" performances of the broadcasts, which it can't do under federal copyright law without the broadcasters' permission and the broadcasters have withheld that permission.

The greater issue is whether or not the court will uphold the obligation of broadcasters to provide "free" over-the-air television. The broadcasters (or their predecessors) received their valuable broadcast spectrum for free in exchange for providing free over-the-air television programming. Now they are seeking to effectively renege on that bargain. The Supreme Court will decide whether or not they can.

A few decades ago, broadcast television was the principal means for delivering video content. For the past decade or so, cable and satellite have been the dominant forms of video-content delivery. The use of antennas to receive free over-the-air broadcast signals has plummeted. In July, the Consumer Electronics Association said that just 7 percent of U.S. households with television solely used antennas to obtain TV programming.

The court must look beyond the copyright issues the broadcasters have raised and assess the case in the broader context of Internet innovation, technology and the use of valuable radio spectrum. The broadcasters continue to waste precious blocks of radio spectrum to broadcast their signals to ever dwindling audiences - spectrum that might be put to better uses, such as wireless broadband. Spectrum that the broadcasters were given for free by the government. Spectrum that supposedly belongs to us, the public.

Viewed from the perspective of broadcast issues instead of copyright issues, Aereo is simply receiving the broadcasters' signals that they are obligated to transmit free over the air. The court should find that Aereo's service amounts to renting an antenna to its user and receiving the free over-the-air signal and not violating broadcasters' copyrights.

Aereo should be applauded for rejuvenating free over-the-air TV and increasing the use of broadcasters' spectrum by reaching more users through a new distribution format. The broadcasters should recognize that any technology that promotes their content is beneficial for them because they are getting viewers they might not otherwise have and their ad revenue depends on audience size.

Some broadcasters, such as News Corp. President Chase Carey, have threatened to stop broadcasting if Aereo wins. That might be a good thing. First, some entrepreneur/innovator would undoubtedly step forward and agree to permit Aereo to deliver its broadcast content recognizing that it is reaching new audiences. Consumers would get new content, delivery on demand and an alternative to cable and satellite. Second, the government could then reclaim any radio spectrum broadcasters have voluntarily ceased to use and auction that spectrum to someone who would put it to an efficient use.

But if the court rules for the broadcasters, then innovation, consumers and efficient spectrum use all lose.

James P. Tuthill received his law degree from Northwestern University School of Law and teaches telecommunications, broadcast and Internet law at the UC Berkeley School of Law.

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